Jerry Okungu: Divorce the draft from Kibaki, Raila

Posted on03 December, 2009

I cannot be persuaded that the only important constitutional issue in Kenya is the executive powers of the President or the Prime Minister.

In the same vein, nobody can convince me that a duly elected popular leader must be the one to wield executive power just because, he is elected by the people. If that were the case, Hitler's popular vote did not prevent him from carrying out genocide in his own country.

Let the media give , Kenyans a break so that they can debate this draft with sobriety. Let it not be a PNU-ODM, Kibaki-Raila contest. Kenyans are past that. They fought a bitter war in 2005 and both sides lost. They repeated the same fight in 2007 and again, both sides lost. That is why both sides are in a coalition. Nobody won the elections. It is therefore pointless to incite the public or different ethnic communities to begin viewing the draft in terms of Raila or Kibaki.

The two leaders will be history in 10 years just as Moi is today. Moi scuttled the constitution process in November 2002 thinking that without it, he would influence politics. Today, he is a spectator.

Let Kenyans zero in on aspects such as a devolved government, two chambers of Parliament, a recall clause for MPs and the right to education for Kenyan youth.

Let them entrench anti-corruption law into the constitution so that whoever steals public funds will be violating not just an Act of Parliament but the fundamental law of the land.

Let us entrench an oath by which elected leaders will swear that they will not steal public funds and that they will set examples of good citizenship by paying their taxes instead of hiding their incomes in sitting allowances.

The draft constitution under the Bill of Rights proclaims that every child will be entitled to free and compulsory primary education.

This is good but let the constitution go further and clearly state that "Every Kenyan child will be entitled to free education up to the maximum that their academic ability can take them and that the state will guarantee them this right".

On the Cabinet composition, the draft has not gone far enough.

Twenty members of the Cabinet for a tiny country like Kenya are extravagant and ill-conceived. Now that we are proposing a three-tier,government just like the US, we don't need too many Cabinet ministers because most of the government will be in the regions.

In the US, a country of 50 states and 300 million people, the Obama administration has less than 20 federal cabinet ministers. India, the largest democracy in the world with a population of 1.9 billion people only, has 19 Cabinet ministers.

In my opinion, eight Cabinet ministers, one from each province, would be the ideal situation in the next dispensation.

Let us be candid about Cabinet. The reason we have a dysfunctional government is because every Tom, Dick and Harry who gets elected to Parliament expects to fly a flag back to his or her village. Those left out start whining. The new constitution gives us a chance to bar elected MPs from serving as ministers.

We need technocrats who have no allegiance to village constituencies to serve as our ministers. MPs must relinquish their seats as MPs once they are recruited into the Cabinet. It is the only way we will have true separation of powers.

It is good the draft constitution strives to embed press freedom so that past situations where media houses have been raided for one reason or another do not recur.

However, freedom of speech should never be allowed to extend to those that will abuse it by engaging in oral sex on our airwaves. The only way these pornographic broadcasters can be allowed to operate is to deny them free-to-air licences. They have to be confined to subscriber-based cable channels so that their clients can pay to watch.

On broadcast frequencies, the current multiple holders must appreciate that internationally, frequencies allotted to each country are regarded as national assets just like oil, minerals and other natural resources that must equitably be distributed among first, Kenya nationals before foreigners are considered.

Therefore the rule of one frequency one broadcaster must apply so that diversity in thought is maximised.

The current situation where one broadcaster can hoard up to 60 frequencies for speculation purposes must be disbarred in our constitution.